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County of Ocean v. Zekaria Realty

Decided: March 4, 1994.

COUNTY OF OCEAN, A PUBLIC CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ZEKARIA REALTY, INC., ET AL., DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Ocean County.

King, Arnold M. Stein and Ariel A. Rodriguez. The opinion of the court was delivered by King, P.J.A.D.

King

This case involves the right of a property owner to recover damages in condemnation for the taking of a fifteen-foot right-of-way easement. Fourteen years before the taking, the property owner conveyed an easement over the property to the County as a condition of variance and site plan approval. Because of this passage of time without any protest by the property owner, we conclude that the claim for damages in condemnation is time-barred.

Defendant, Zekaria Realty, Inc., is the owner of improved commercial property on Lots 11, 11-1 and 11-2, at Block 673, in Brick Township. In 1978, defendant's property contained a furniture store, beauty parlor, shoe store and barber shop. During 1978, defendant decided to renovate the structure and eliminate the latter three uses. Defendant planned to use the renovated space for a dress shop or boutique. Defendant requested dimensional

variances and site plan approval from the municipality and the County Planning Board (County).

On November 1, 1978 the County granted defendant approval of its site plan application and dimensional variances on several conditions. Most importantly, the County required defendant to grant or "donate" to it a permanent easement for a strip of about fifteen feet on its 175-foot frontage on Brick Boulevard for "possible future street widening." On February 14, 1979 the Brick Township Municipal Planning Board granted final approval to defendant's application subject to the same conditions included in the County's final approval.

Defendant's 1979 site plan approval contained no approval for parking in front of its building on the strip subject to the permanent easement. Nevertheless, without municipal or County approval, defendant subsequently used spaces for roadside parking on the available 125-foot frontage which was not part of the driveway entrance.

More than a decade passed without incident until March 20, 1990. On that day the Ocean County Board of Freeholders decided to widen Brick Boulevard. It ordered the County engineer to acquire rights-of-way or easements by gift, purchase or condemnation for the project. On March 31, 1992 the County filed a complaint in condemnation to acquire a fee simple interest in about 3420 sq. ft. of defendant's property. The area comprised a 27-foot-wide by 175-foot-long strip of defendant's Lots 11, 11-1, 11-2, in Block 673 bordering Brick Boulevard. Fifteen feet of the twenty-seven-foot strip were already subject to the permanent easement which the County had obtained from defendant in 1979.

On May 27, 1992 the County filed a declaration of taking for exclusive possession and title to the property pursuant to N.J.S.A. 20:3-17 to -20 and N.J.S.A. 27:16-1 to -76. Due to the fifteen-foot easement previously granted, as well as the lack of any known or permitted use for the strip, the County's appraisal report provided for no compensatory damages to defendant for the acquisition of that part of the property.

On August 20, 1993 defendant brought a motion before Judge Cooper seeking exclusion of the County appraisal, inclusion of its own appraisal, and a declaration of its right to damages for the loss of its property. The County cross-moved to restrict the defendant's appraisal report and for an adjudication that the County was the legal owner of the easement previously granted by defendant.

After hearing argument on August 29, Judge Cooper entered her order on September 1 denying defendant's motion to exclude the County's appraisal. She granted plaintiff's cross-motion, "to the extent that the Court concludes that a Deed of Road Easement, attached hereto as Exhibit 'A', is owned by the County of Ocean, lawfully, and the County of Ocean does not have to pay any compensation for the interest in real property reflected in Exhibit 'A' attached hereto."

Defendant sought leave to appeal, R. 2:2-3(b), which we granted on October 18, 1993. Defendant urges that requiring an applicant to grant to the County an easement for road widening as a condition precedent to approval of a site plan application was ultra vires and illegal absent a rational nexus, which did not exist here, between the need to widen the road and the applicant's proposed usage. To that extent, defendant is correct.

In Harris v. Salem County Planning Bd., 123 N.J. Super. 304, 302 A.2d 552 (App.Div.), certif. denied, 64 N.J. 152, 313 A.2d 212 (1973), we held that N.J.S.A. 40:27-6.2, which permitted Boards of Chosen Freeholders to require site plan applicants to dedicate certain portions of their property which border county roads in order to conform to the County's master plan, was not necessarily a taking without just compensation, and was constitutional. Id. at 307, 302 A.2d 552. However, we disagreed with the proposition that in every case a board could require dedication of land for rights of way without compensating the land's owner. "We interpret the cases hereinafter ...


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